Interns have been given the job of weeding out potential wrongful convictions for rape and murder in a major case review prompted by Andrew Malkinson’s exoneration, the Guardian can reveal.
The miscarriage of justice body the Criminal Cases Review Commission (CCRC) said last month that it would be re-examining cases it had refused to refer to the court of appeal to check for new DNA testing opportunities.
An internal CCRC board paper seen by the Guardian shows that its newly announced forensic trawling exercise has so far been carried out by interns, who have begun the process of whittling down historic cases that could be sent for further DNA testing.
The exercise has been trumpeted as having the potential to uncover further wrongful convictions that have been missed by the body. Emily Bolton, Malkinson’s solicitor at the law charity Appeal, said: “Given the seriousness of this review, it is concerning that so far the work has been done mainly by interns.”
The paper also suggests that there are about 8,000 other serious potential miscarriages of justice not being considered because the CCRC, which covers England, Wales and Northern Ireland, has limited the scope of the exercise to rape and murder convictions.
Marked “official sensitive” and partly redacted, the board paper was written by the casework operations director on 8 March and sent to Malkinson’s legal team following a freedom of information request.
Malkinson spent 17 years in prison for a 2003 rape with no DNA linking him to the crime. He was exonerated last year after fresh forensic testing of a sample of the victim’s clothing linked to male DNA on the police database.
The CCRC knew five years after Malkinson was convicted that a forensic review had found a searchable male DNA profile on the victim’s vest top but declined to order further DNA testing and refused his case in 2012. A breakthrough came only after his legal team arranged further forensic work themselves.
The CCRC’s announcement of a trawl of cases came before the publication of a major review of its handling of Malkinson’s case. The review, led by Chris Henley KC, was handed to the CCRC earlier this year. It is expected to be critical of the body and to recommend a similar exercise to the one announced.
The document also reveals that there are no plans to consult forensic scientists until the final phase of the exercise, after its own case workers have made a decision on whether forensic work might make a difference to the case.
A DNA expert whose early research ultimately prompted a breakthrough in Malkinson’s case questioned why there appeared to be no plans for forensic scientists to be consulted in the early stages.
The development raises serious concerns about the possibility of cases being missed in the initial trawl. The brief says “a small sample” was reviewed by “members of the casework operations team” to develop guidance before the exercise was handed to interns.
The CCRC said its interns were salaried members of the team who had completed the Bar course before joining and typically stayed for more than a year before then moving on to pupillages. It said it would recruit investigators for the later stages of the review process.
Prof Christophe Champod, the forensic scientist whose pro bono work with a team at the University of Lausanne established that further DNA testing on key exhibits had the potential to exonerate Malkinson, said: “In the aftermath of Andy[Malkinson]’s case I can see that it may worry people to think that the CCRC itself will decide whether it is worth it to do extensive forensic work or not. What really matters is what is the expertise that is brought in reviewing these cases.
“I think this is something for a forensic scientist to do, even if it is a triage. I really think you need DNA expertise, not only awareness.”
The CCRC’s trawl will look at all cases where someone was convicted of rape or murder before 2016 and had their case refused by the body. The year 2016 was chosen because after that the use of more sensitive DNA-17 testing was widespread.
In the first phase, interns are checking more than 5,000 rape and murder convictions refused for referral back to the appeal court and leaving out those they deem irrelevant. They are looking for cases where the identity of the attacker is in question and will exclude those where, for example, arguments about consent or self-defence were the reason for application.
So far, the interns have whittled down 912 potentially eligible cases to 270 and are now analysing the rest.
The second phase will be conducted in-house by investigators to identify cases where further DNA testing might be an option “based on the material available in our system”. Only these cases will move to phase three where work with forensic scientists could result in more DNA testing.
Malkinson’s solicitor, Bolton, said: “For this exercise to effectively root out miscarriages of justice the CCRC must get input from independent forensic scientists throughout the process. It cannot be left to non-scientists alone to identify possible forensic opportunities in these cases.
“The scope of the review also needs to be significantly expanded. This internal document recognises that there are thousands of serious cases which will not be explored even though DNA breakthroughs might be possible. That cannot be right.
“The other limitation is that this review is focused purely on identifying DNA opportunities the CCRC might previously have missed on cases. However, we know from Andrew Malkinson’s case that the CCRC missed other lines of inquiry as well, including failing to review the police files.”
The brief acknowledges that there are thousands of serious previously rejected cases where the identity of the offender may be an issue but that will not be considered for new DNA testing because the current review is only focused on rape and murder cases.
The paper notes that extending the scope of the review to include other sexual offences, violence against the person, burglary and robbery would add about 8,000 more cases and says “concerns about the scope” of any trawl are reasonable.
It adds: “If we are committed to finding miscarriages of justice, we must consider a trawl of our closed cases. The scale of such an exercise is, however, daunting.”
When asked about this, the CCRC said that “the most serious of cases, those involving murder and rape, are being looked at currently” but that it had not ruled out assessing other cases.
A spokesperson for the CCRC said: “Phase two is a preliminary assessment, and is about identifying cases where forensic evidence might make a difference. Detailed consideration would take place at phase three and would involve consultation with forensic scientists. At each stage, borderline cases will be included rather than excluded.”
• The headline of this article was amended on 2 May 2024 to remove a reference to the UK; the CCRC covers England, Wales and Northern Ireland.
